Prosecutions

Table of Contents

GENERAL

Social Welfare legislation provides that certain offences are to be dealt with by means of prosecution. Section 272 of the Social Welfare (Consolidation) Act 2005 provides that proceedings for an offence will only be instituted by or with the consent of the Minister or an officer authorised by the Minister.

While the requirement to prosecute is not expressed in absolute terms, it is the Department's policy to consider for prosecution all cases of fraud and abuse of the Social Welfare system.

The decision to prosecute is based on the circumstances of the individual case and the nature of the alleged offence, as well as on an appraisal of the evidence available. Factors taken into account include the duration of the fraud/abuse, the size of the overpayment, any mitigating or aggravating circumstances involved and the deterrent effect a prosecution may have in the public mind.

Central Prosecutions Service (CPS)

The Central Prosecutions Service of the Department (157/164 Townsend Street, Dublin 2) was set up in 1990 to:

act as the central section for all cases involving legal proceedings;

develop common standards for the prosecution of cases;

co-ordinate all cases involving criminal and civil proceedings;

prepare briefs for referral to the Chief State Solicitor and give on-going instructions as necessary;

monitor the outcome of court cases;

assist in evolving appropriate prosecution policies for particular schemes and types of offences;

identify potential changes in legislation with a view to reducing the cost and effort of the investigation, preparation and finalisation of legal proceedings;

liaise with the Chief State Solicitor's Office, local State Solicitors, regions and scheme sections in relation to prosecutions.

Criminal Proceedings

Criminal prosecutions are taken against persons who defraud the social welfare payments system and employers who fail to carry out their statutory obligations

Prosecutions can be taken either by summary or indictment proceedings.

Summary Proceedings

Summary proceedings are heard in the District Court and carry maximum penalties of €2500 fine and/or 6 months in prison. Most offences committed under the Social Welfare Acts are pursued summarily by the Department as the penalties available are considered adequate to reflect the seriousness of the offences involved. A prosecution for a summary offence may only be brought -

within a period of 2 years commencing on the date on which the offence was committed whichever expires later.

within a period of 18 months from the date on which evidence sufficient to justify the institution of proceedings came into the possession of the Minister, or

Indictment

The question of proceeding on indictment is one which is kept under constant review. Cases of very serious fraud, are referred to the Director of Public Prosecutions with a view to taking indictment proceedings. These cases are heard before a judge and jury in the Circuit Court and carry maximum penalties of a fine of 13,000 and/or 3 years in prison. The penalty to be imposed in any case is a matter exclusively for the court to determine.

Civil Prosecutions

Civil proceedings are taken to facilitate the recovery of overpayments (fraud and non-fraud) or collection of PRSI arrears. The Chief State Solicitor's Office (CSSO) has advised that civil proceedings should only be contemplated where the amount of the overpayment exceeds the cost of taking the proceedings and where it has been established that the debtor has sufficient means to discharge the debt. Civil proceedings are only considered in cases where all other available recovery attempts have been unsuccessful.

Administrative Procedures

On receipt by the Central Prosecution Service, a case is scrutinised to ensure that there is sufficient evidence to forward the case to the CSSO for prosecution and, where there is such evidence, specific charges against the defendant are drawn up.

A brief containing the specific charges involved and the evidence to support them is prepared together with the relevant legislation. A fact sheet, outlining the facts of the case, and a list of witnesses are also prepared for the convenience of the State Solicitor.
The case is submitted for authorisation to an Assistant Secretary of the Department, being an officer nominated by the Minister to authorise proceedings under Section 272 of the Social Welfare (Consolidation) Act 2005, who signs the Certificate of Authorisation on the brief.

The brief is sent to the CSSO with a covering letter requesting the commencement of proceedings. Copies of the brief are retained on file in CPS and the original is sent to the Inspector who investigated the case.
The proofs required to process a case for prosecution vary depending on the offence. The majority of fraud cases are taken depending on the offence. The majority of fraud cases are taken for offences under Article 209 of Statutory Instrument No. 142 of 2007 (Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, for failure to notify a change of circumstances, or under Section 251 of the Social Welfare (Consolidation) Act 2005, which relates to the making of false declarations for the purpose of obtaining benefit/assistance to which a client is not entitled.

For example, in the case of a person who declares that s/he was unemployed on specific days and is alleged to be working on these days, examples of proofs required would be:

original claim form to show that s/he had made a claim for a jobseeker's payment;

the declaration signed which is alleged to be untrue;

a statement of his/her employment and details of specific days of employment from his/her employer;

a record of payment received as a result of the false declaration(s);

if available, an admission by the defendant, under caution, that s/he has committed the alleged offence.